Commonwealth Consolidated Acts

FAMILY LAW ACT 1975 - SECT 90SF

Matters to be taken into consideration in relation to maintenance

(1) In exercising jurisdiction under section 90SE (after being
satisfied of the matters in subsections 44(5) and (6) and
sections 90SB and 90SD), the court must apply the principle that a party
to a de facto relationship must maintain the other party to
the de facto relationship:

(a) only to the extent that the first-mentioned party is reasonably able
to do so; and

(b) only if the second-mentioned party is unable to support himself or
herself adequately whether:

(i) by reason of having the care and control of a child of
the de facto relationship who has not attained the age of 18
years; or

(ii) by reason of age or physical or mental incapacity for appropriate
gainful employment; or

(iii) for any other adequate reason.

Note: For child of
a de facto relationship , see section 90RB.

(2) In applying this principle, the court must take into account only
the matters referred to in subsection (3).

(3) The matters to be so taken into account are:

(a) the age and state of health of each of the parties to
the de facto relationship (the
subject de facto relationship ); and

(b) the income, property and financial resources of each of the parties
and the physical and mental capacity of each of them for appropriate gainful
employment; and

(c) whether either party has the care or control of a child of
the de facto relationship who has not attained the age of 18
years; and

(d) commitments of each of the parties that are necessary to enable the
party to support:

(i) himself or herself; and

(ii) a child or another person that the party has a duty to maintain;
and

(e) the responsibilities of either party to support any other person;
and

(f) subject to subsection (4), the eligibility of either party for
a pension, allowance or benefit under:

(ii) any superannuation fund or scheme, whether the fund or scheme was
established, or operates, within or outside Australia;

and the rate of any such pension, allowance or benefit being paid to either
party; and

(g) a standard of living that in all the circumstances is reasonable;
and

(h) the extent to which the payment of maintenance to the party whose
maintenance is under consideration would increase the earning capacity of that
party by enabling that party to undertake a course of education or training or
to establish himself or herself in a business or otherwise to obtain an
adequate income; and

(i) the effect of any proposed order on the ability of a creditor of a
party to recover the creditor's debt, so far as that effect is relevant; and

(j) the extent to which the party whose maintenance is under
consideration has contributed to the income, earning capacity, property and
financial resources of the other party; and

(k) the duration of the de facto relationship and the
extent to which it has affected the earning capacity of the party whose
maintenance is under consideration; and

(l) the need to protect a party who wishes to continue that party's role
as a parent; and

(m) if either party is cohabiting with another person--the financial
circumstances relating to the cohabitation; and

(n) the terms of any order made or proposed to be made under
section 90SM in relation to:

(ii) a person who is a party to a marriage with a party to the
subject de facto relationship; or

(iii) the property of a person covered by subparagraph (i) and of a
person covered by subparagraph (ii), or of either of them; or

(iv) vested bankruptcy property in relation to a person covered by
subparagraph (i) or (ii); and

(q) any child support under the Child Support (Assessment) Act 1989 that
a party to the subject de facto relationship has provided, is
to provide, or might be liable to provide in the future, for a child of the
subject de facto relationship; and

(r) any fact or circumstance which, in the opinion of the court, the
justice of the case requires to be taken into account; and

(s) the terms of any Part VIIIAB financial agreement that is
binding on either or both of the parties to the
subject de facto relationship; and

(t) the terms of any financial agreement that is binding on a party to
the subject de facto relationship.

(4) In exercising its jurisdiction under section 90SE, a court must
disregard any entitlement of the party whose maintenance is under
consideration to an income tested pension, allowance or benefit.